International Legal Positivism
Florian Hoffmann, Anne Orford (eds), Oxford Handbook of International Legal Theory (Oxford: Oxford University Press 2015)
15 Pages Posted: 8 Aug 2014
Date Written: August 7, 2014
This chapter for the Oxford Handbook of International Legal Theory describes aspects of today’s international legal positivism. (International) legal positivism is dead just as much as it is all-pervading; most theorists use the term ‘positivism’ as a pejorative, yet it is utilised constantly by international lawyers, both scholars and practitioners. In Section 2, positivism is distinguished from today’s portmanteau ‘formalism’; it is shown that in most, but not all respects, positivism is not wedded to a formalist stance. Section 3 distinguishes modern, jurisprudentially informed positivisms (foremost those based on Hart and Kelsen) from the straw man we have erected of a classical, 19th century international legal positivism. This straw man is historical humbug just as it remains today a very potent force of critique or unquestioning acceptance by certain orthodox ‘positivists’.
Section 4 attempts to draw out one specific aspect of one modern positivist approach to international law: Jean d’Aspremont’s international legal positivism, as a socio-realistic variant of Hartianism is, so it is argued, surprisingly close to Alf Ross’ Scandinavian Legal Realism. So close does his modification of Hart’s theory come to Ross that Hart would very likely have objected to this move - and for good reasons. Neglecting the normative aspect of rules strengthens the predictable critique, levelled in 1913 by Kelsen against Ehrlich: either the Ought is neglected by legal sociology or such an enterprise relies on the normative aspect in a subconscious manner. The chapter concludes on a pessimistic note: there is no one international legal positivism. Hart and Kelsen only appear close on the surface, but are worlds apart in terms of their philosophical foundation.
Keywords: HLA Hart, Hans Kelsen, Alf Ross, Brian Tamanaha, Jean d'Aspremont, legal positivism, legal realism, communitarian semantics, theory of science, Pure Theory of Law, formalism, international legal positivism
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